July 20, 2011

Why Veterans Need Lawyer !

Excerpt from decision below:
“With respect to in-service incurrence, the Board wrote:
The Board concludes an examination is not needed here because the only evidence indicating [that Mr. Pederson] “suffered an event, injury or disease in service” is his own lay statement that he underwent counseling for his behavioral problems.
Although service personnel records show that [he] was punished for misconduct on numerous occasions, there is no evidence of mental health counseling or treatment for any psychiatric problems. [Mr. Pederson’s] lay statement is insufficient to trigger VA’s duty to provide an examination. There is no reasonable possibility that a medical opinion would aid in substantiating [his] claim since it could not provide evidence of a past event. R. at 7-8 (citations omitted). The Board is incorrect that “the only evidence” of in-service incurrence is Mr. Pederson’s statements that he received counseling. Mr. Pederson’s personnel records are replete with instances of drastic, unexplained changes in behavior, disciplinary infractions, and, ultimately, treatment (and, presumably, counseling) in the Base Alcohol Rehabilitation Program.
The Board’s failure to consider and discuss whether this evidence suggests
that his bipolar disorder began in service means that its determination that a medical examination is not warranted is unsupported by adequate reasons or bases. Accordingly, remand is required. See Duenas, 18 Vet.App. at 517-18 (citing Tucker, 11 Vet.App. at 374).”
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Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HAGEL, Judge: Daniel R. Pederson appeals through counsel a July 31, 2009,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for bipolar disorder. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to
review the Board decision.
Neither party requested oral argument or identified issues that they
believe require a precedential
decision of the Court. Because the Board’s determination that VA satisfied
its dutyto assist is clearly
erroneous and unsupported by adequate reasons or bases, the Court will
vacate the July 2009 Board
decision and remand the matter for further development and readjudication
consistent with this
decision.
I. FACTS
Mr. Pederson served on active duty in the U.S. Air Force from March 1974
to January 1976.
His service entrance examination revealed no psychiatric disabilities. His
service personnel records
reveal various disciplinary problems, including failure to report for duty,
a traffic violation, and
alcohol use on base. In October 1975, Mr. Pederson entered the Base
Alcohol Rehabilitation
Program. In January 1976, the Air Force proposed to discharge Mr. Pederson
from service due to

his “inability to adjust to the demands of military life.” Record (R.) at
16. He was honorably
discharged later that month.
In May 1998, a VA regional office granted Mr. Pederson non-service-
connected pension on
the basis of bipolar disorder with chronic severe depression.
In September 2004, Mr. Pederson sought VA disability benefits for bipolar
disorder. In
support of his claim, Mr. Pederson explained that he had been an air
traffic controller while in
service, which he reported was “a very stressful job.” R. at 380. He
stated that he had undergone
counseling while in service because he “got in trouble so much.” Id. He
also stated that bipolar
disorder had “destroyed” his life since service. Id. In an October 2004
information release consent
form, Mr. Pederson wrote: “My bipolar [disorder] in active duty [in] 1974[]
was shown by
counseling I had to take, and all the trouble I got into in the service.
My whole adult life after the
service was terrible [and] tra[g]ic until I found out I had bipolar [
disorder].” R. at 317. In a
December 2004 statement, Mr. Pederson’s sister advised VA that Mr.
Pederson began to drink
heavily during service and “became very belligerent with his officers.” R.
at 315. She wrote:
When he returned to civilian life, he had changed considerably. He
wasmature,bold,
and very angry. Probably his anger had a lot to do with his increased use
of alcohol.
For the next 25-27 years of his life, he battled with an alcohol addiction
[] and fell on
terrible times. He was either very sweet and brotherly, or he was
monstrously angry
and confrontati[onal]. He had great difficulty balancing his extreme mood
swings,
and sadly, destroyed his relationships with the women he loved, and
created poor
relations with his daughter . . . . I myself never knew which Dan I would
be seeing.
I became unwilling to risk his anger and destructive, demanding behaviors,
and saw
him infrequently. He is my only sibling, and I experienced a great loss of
a brother
once he came home from the military.
Id.
In February2005, the regional office denied Mr. Pederson’s claim, finding
no evidence of in-
service incurrence of bipolar disorder and no evidence of a link between
his current condition and
service. Mr. Pederson filed a Notice of Disagreement with that decision.
In February 2006, VA requested Mr. Pederson’s “entire personnel file” from
Rickenbacker
Air Force Base. R. at 218. In April 2006, VA received a response that VA
had been given all of Mr.
Pederson’s medical and dental records in May 1998, and that “searches for
mental health records
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from 10/1/75 to 1/1/76 were conducted for Rickenbacker [Air Force Base],
but no mental health
records were located.” R. at 218-19.
In July 2009, after several years of additional development, Mr.
Pederson’s representative
submitted a written argument to the Board:
[Mr. Pederson’s] military personnel records show worsening in his behavior
over
time. He began to lose focus and frequently did not report for duty. He
was arrested
near the end of his enlistment for disobeying traffic signs and making a
rude gesture
to the gate guard on base. His annual performance evaluation notes very
low
markings bearing, behavior, and ability to adjust to military life. His
commander
remanded him on several occasions, reduced his pay, and enrolled him in
the base
alcohol assistance program. After no improvement in his condition was
noticed, he
was recommended for discharge.
[Mr. Pederson] has provided a credible statement in support of his claim.
He had no
noticeable behavioral defects prior to service and was found fit for duty.
He noticed
the changes in behavior began while in service and felt his problems came
from the
extreme stress from his occupation. After being discharged he reports a
history of
jail time and treatments in institutions.
R. at 290-91.
In July 2009, the Board issued the decision on appeal. Relevant to the
issues on appeal, the
Board determined that VA satisfied its duty to assist, specifically noting
the February 2006 request
andApril2006responseregardingrecords from Rickenbacker Air ForceBase. The
Boardnotedthat
Mr. Pederson had not identified any missing or outstanding records and had,
in fact, asserted that he
had no additional evidence to submit. The Board also determined that
remand to obtain a VA
medical examination was not warranted in the absence of evidence of in-
service incurrence of Mr.
Pederson’s condition.1
II. ANALYSIS
On appeal, Mr. Pederson makes two arguments, both related to the Board’s
finding that VA
satisfied its duty to assist. First, he contends that the Board erred in
finding that remand to obtain
a VA medical examination was not warranted. Second, he asserts that VA
failed to obtain records
The Board stated that it was relying both on the absence of in-service
incurrence and the absence of evidence
regarding nexus, but its discussion of the evidence in this respect
focused only on in-service incurrence. See R. at 7-8.
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from the Base Alcohol Rehabilitation Program in which he participated
while stationed at
Rickenbacker Air Force Base.
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2011), VA must provide a claimant
a medical opinion
or examination
if the information and evidence of record does not contain sufficient
competent
medical evidence to decide the claim, but
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injuryor disease in
service,
or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,
§ 3.313, § 3.316, and § 3.317 manifesting during an applicable
presumptive
period provided the claimant has the required service or triggering event
to
qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated
with
the established event, Previous DocumentinjuryNext Hit, or disease in service or with another
service-connected disability.
See also 38 U.S.C. § 5103A(d)(2). When the Board considers whether a
medical examination or
opinion is necessary under section 5103A(d) and § 3.159(c)(4), it must
provide a written statement
of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(
d)(1), and, absent a finding
of nonprejudicial error, vacatur and remand is warranted where it fails to
do so. Duenas v. Principi,
18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369,
374 (1998)).
There is no dispute that Mr. Pederson has a current diagnosis of bipolar
disorder, thereby
meeting the first requirement outlined above. The Board determined that no
medical examination
was warranted because of a lack of evidence that Mr. Pederson “suffered an
event, Previous HitinjuryNext Hit or disease
in service.” 38 C.F.R. § 3.159(c)(4)(i)(B). In light of that finding, the
Board never analyzed whether
Mr. Pederson met the third and final requirement regarding evidence that
may indicate that the
current disability is related to service.
Mr. Pederson argues that the Board’s finding with respect to the second
element is erroneous
becauseit ignoreshis in-serviceexperiences,particularly”actions
indicativeofdepressiveandmanic
episodes, including loss of interest, distractability, changes in levels
of goal-directed activity, and
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indulgence in pleasurable high-risk activities–specifically excessive
drinking.” Appellant’s Brief at
9. In support of his argument, Mr. Pederson summarizes the Diagnostic and
Statistical Manual of
Mental Disorder’s entry on bipolar disorder and includes examples of manic
and depressive
behaviors, some of which Mr. Pederson purportedly demonstrated during
service.
With respect to in-service incurrence, the Board wrote:
The Board concludes an examination is not needed here because the only
evidence
indicating [that Mr. Pederson] “suffered an event, Previous HitinjuryNext Document or disease in
service” is his
own lay statement that he underwent counseling for his behavioral problems.
Although service personnel records show that [he] was punished for
misconduct on
numerous occasions, there is no evidence of mental health counseling or
treatment
for any psychiatric problems. [Mr. Pederson’s] lay statement is
insufficient to trigger
VA’s duty to provide an examination. There is no reasonable possibility
that a
medical opinion would aid in substantiating [his] claim since it could not
provide
evidence of a past event.
R. at 7-8 (citations omitted). The Board is incorrect that “the
onlyevidence” of in-service incurrence
is Mr. Pederson’s statements that he received counseling. Mr. Pederson’s
personnel records are
replete with instances of drastic, unexplained changes in behavior,
disciplinary infractions, and,
ultimately, treatment (and, presumably, counseling) in the Base Alcohol
Rehabilitation Program.
The Board’s failure to consider and discuss whether this evidence suggests
that his bipolar disorder
began in service means that its determination that a medical examination
is not warranted is
unsupported by adequate reasons or bases. Accordingly, remand is required.
See Duenas,
18 Vet.App. at 517-18 (citing Tucker, 11 Vet.App. at 374).
On remand, the Board will expressly consider this evidence in conjunction
with Mr.
Pederson’s statements, which the Court notes the Board did not find
incredible, and any other
evidence Mr. Pederson opts to submit in support of his claim. Should the
Board find the second
requirement met, it must then consider whether the evidence of record,
including Mr. Pederson’s lay
statements as well as those of his sister regarding his symptoms since
service, meets the “low
threshold” of the third prong of § 3.159(c)(4)(i), such that a medical
examination is warranted.
McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
With respect to Mr. Pederson’s second argument, it is not clear to the
Court, as the Secretary
presumes, that Base Alcohol Rehabilitation Program records would have been
included in “mental
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health”records. Without furtherclarificationfromtheservicedepartment,
theBoard’s determination
that VA satisfied its duty to assist in this regard is clearly erroneous.
See Nolen v. Gober,
14 Vet.App. 183, 184 (2000) (holding that the Court reviews the Board’s
determination that VA
satisfied its duty to assist under the “clearly erroneous” standard of
review); 38 C.F.R. § 3.159(c)(2)
(2011) (permitting VA to discontinue its efforts to obtain records from a
Federal department or
agencyonlywhen it concludes that continued efforts would be futile, which
requires that the Federal
department or agency advise VA that either the requested documents do not
exist or that the
custodian does not have them).
On remand, Mr. Pederson is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[
a] remand is meant to
entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, the July 31, 2009, Board decision is
VACATED and
the matter is REMANDED for further development and readjudication consistent
with this decision.
DATED: July 13, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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